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Cite as Lando, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 261-264. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 33

Ole Lando

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 33

The seller must deliver the goods:

(a) if a date is fixed by or determinable from the contract, on that date;
(b) if a period of time is fixed or determinable from the contract, at any time within that period unless circumstances indicate that the buyer is to choose a date; or
(c) in any other case, within a reasonable time after the conclusion of the contract.

1. History of the provision

     1.1. - The provision on the time for delivery of the goods passed almost unchanged from the 1935 Draft to Articles 20-22 of ULIS. Article 20 of ULIS contained a description of the seller's duty to deliver at the date fixed, Article 21 a rule for the date of delivery when a period of time had been fixed, and Article 22 a rule for the time for delivery in other cases. The rules have remained almost unchanged in substance. However, in the UNCITRAL Draft Convention and in the present Convention the three articles were merged.

     1.2. - Article 33(b) is similar to Article 13 of the 1905 Scandinavian Sale of Goods Act and Article 33(c) to the common law (see Section 29(3) of the United Kingdom Sale of Goods Act 1979 and Section 2-309(1) of the United States Uniform Commercial Code).

2. Meaning and purpose of the provision

          2.1.1. - Article 33 deals with the time of delivery of the goods and provides for the following situations: 1) the date of [page 261] delivery is fixed by the contract; 2) the period of time is fixed within which delivery must be made; and 3) «any other case(s)». This would mean that Article 33 deals exhaustively with all times for delivery. Article 33(c) will cover the cases not covered by the other two sub-sections (see § § 2.2., and 2.4., infra).

          2.1.2. - Article 33 determines the time at which the seller is obliged to make delivery. It does not provide expressly for the time at which the buyer has to take delivery. Articles 53 and 60 state that the buyer has a duty to take delivery and Articles 61-65 lay down the remedies for breach of this duty. The Convention, however, contains no general provision on the time at which the buyer commits a breach of contract by not taking delivery.

Usually a buyer who has failed to take delivery has also failed to make payment at the time laid down in Articles 58 and 59. The seller then has appropriate remedies. Remedies for mere failure to take delivery are needed when scrap, waste or other objects which the seller wishes to dispose of are sold; such contracts often fix a time for the buyer to take delivery.

If the contract is silent the buyer will, generally, have to take delivery when the seller has the right to effect delivery. In situations covered by Article 33(a) the seller's right and duty to deliver will usually coincide. However, Article 69 provides that where goods are to be delivered at the seller's place of business the buyer commits a breach of contract if he fails to take delivery within due time after the goods have been placed at his disposal. This rule also applies when a date for a delivery has been fixed.

When a period of time has been fixed for the buyer within which he may demand delivery, he must fix a date within that period. If he fails to do so he commits a breach of contract. This seems to follow from Article 33(b).

Finally, if the buyer is to collect the goods, as he is under Article 31(b) and (c), and a period of time has been fixed within which the seller may place the goods at the buyer's disposal but nothing is said about when the buyer must collect the goods, he must do so within a reasonable time after he receives notice of the seller's tender. This rule seems to follow from Article 33(c).

     2.2. - Article 33(a) repeats the parties' duty to comply with the contract and is for that reason unnecessary. It is explained by [page 262] the need to underline the paramount importance of the contract in determining the time of delivery.

Article 33(a) covers the case mentioned earlier in Article 20 of ULIS, when a date of delivery is fixed in the contractor by usage. This date may be determinable by the calender («two weeks after Easter») or fixed in relation to a definite event («one week after first open water»). The time for delivery may also, as in Economic Commission for Europe General Conditions for the Supply of Plant & Machinery for Export No. 188 clause 7.1., be fixed in relation to the latest of one of three events: the formation of the contract, the seller's receipt of notice of the buyer's import license, or the seller's receipt of an advance payment.

     2.3. - When the contract fixes a period of time within which delivery shall occur it is, in general, the seller who is to choose the time of delivery. The seller must deliver by the end of this period. During the period he can discharge his obligation at any time and oblige the buyer to take delivery (see § 2.1.2., supra). To state, as does Article 33(b), that «the seller must deliver ... at any time within the period», i.e., when he chooses to deliver, is an apparent contradiction in terms, which was avoided in Article 21 of ULIS.

If, however, the circumstances of the contract indicate that the buyer is to choose the date of delivery, the seller is obliged to deliver at the date chosen by the buyer. This will be the case when the term F.O.B. is used (see INCOTERMS F.O.B., B.1). It may also happen in some of the cases envisaged by Article 33(b) or (c), when the buyer is to come and collect the goods which the seller must then put at his disposal.

     2.4. - The rule in Article 33(c) covers cases in which no time has been fixed in the contract. In cases not covered by paragraph (a) and (b) the seller must deliver within a reasonable time after the conclusion of the contract. What is a reasonable time depends upon the circumstances of the case. Article 33(c) probably also covers cases in which an undetermined time for delivery has been provided, such as «as soon as possible». If the seller's duty to deliver the goods is tied to the occurence of an uncertain event Article 33(c) should apply, so that this duty is [page 263] limited to a reasonable period of time (see also Article 7(1) on the observance of good faith in the interpretation of the Convention).

3. Problems concerning the provision

Article 33 purports to deal exhaustively with all times of delivery (see § 2.1.1., supra). There are, however, some agreements concerning the time for delivery which are not easily placed under any of the three situations described under Article 33(a)(b) or (c). One such situation would be if the seller's duty to deliver is fixed at the occurrence of an uncertain event (see § 2.4., supra). [page 264]


Pace Law School Institute of International Commercial Law - Last updated January 27, 2005
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